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Exporters Must Comply With Hong Kong Import and Export Controls

Beginning on April 19, 2017, individuals and companies planning to export to or re- export from Hong Kong will need to obtain certain paperwork prior to shipping. This new rule was published earlier in 2017, by the Department of Commerce’s Bureau of Industry and Security (BIS), expanding compliance requirements for persons intending to export to or re-export from Hong Kong any items controlled under the Export Administration Regulations (EAR), specifically, items controlled for national security (NS), missile technology (MT), nuclear nonproliferation (NP column 1), or chemical and biological weapons (CB) reasons.

Exporters and re-exporters of these items to Hong Kong must obtain, prior to shipment, either:

A copy of a valid import license from the Hong Kong importer issued by the Hong Kong government, or;

A copy of a written statement issued by the Hong Kong government that no import license is required.

Persons intending to re-export these items from Hong Kong must obtain prior to shipment either:

A Hong Kong export license; or

A statement from the Hong Kong government that such a license is not required.

It bears noting that a U.S. exporter is not required to obtain a copy of a Hong Kong export license, even if the exporter knows the item will be subsequently re-exported from Hong Kong. Rather, the Hong Kong re-exporter itself is required to obtain a Hong Kong export license or other documentation prior to the re-export.

Indications that no HK import or re-export license is required may be publicly available from the Hong Kong Trade and Industry Department website. If an item is not identified on the website, the exporter or re-exporter will need to verify the control status of the item with the Hong Kong government. These documents are not required to be included with a BIS license application is submitted (or shared with BIS when a license exception is utilized), but must be obtained prior to shipment of the item to or from Hong Kong. As with other export control documents, exporters and re-exporters will need to maintain copies of these documents for record-keeping purposes for a period of at least five years from the date of export or re-export.

The amendments do not impose any new burdens on licensing exports or re-exports with BIS. Rather, they effectively compel compliance with Hong Kong import and export controls by requiring proof of compliance with such controls hen shipping pursuant to an EAR license or license exception. This reflects the United States-Hong Kong Policy Act of 1992, which allows the U.S. to treat Hong Kong as a destination separate from the People’s Republic of China for export control purposes. The rule recognizes, though, that Hong Kong is sometimes used to divert and transship items subject to U.S. export controls to mainland China without the required license.

BIS intends that obtaining proof of this documentation will increase assurance that U.S.-origin goods subject to export control regimes are properly authorized to their ultimate destination. BIS has previously published specific exporting guidance on conducting due diligence to prevent unauthorized transshipment from Hong Kong to China. This rulemaking reflects ongoing BIS efforts to combat unauthorized diversions or transshipments to Hong Kong.

BIS published a list of Frequently Answered Questions related to its new rule on March 17, 2017, available on the BIS website here. Companies should assess current obligations under Hong Kong import and export law, and implement procedures for obtaining the required documents in order to ensure compliance with U.S. as well as Hong Kong trade laws.